Right to privacy: India
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The legal position
Not every aspect of privacy is fundamental right: SC
Chief Justice Khehar sums up Centre’s arguments as also saying that not every aspect of privacy is a fundamental right and it “depends on a case-by-case basis.”
The Centre told the Supreme Court that privacy was indeed a fundamental right, but a “wholly qualified” one.
This led a nine-judge Constitution Bench headed by Chief Justice of India J.S. Khehar on Wednesday to sum up Attorney General K.K. Venugopal’s submission thus: “You are saying that right to privacy is a fundamental right. But not every aspect of it [privacy] is a fundamental right. It depends on a case-to-case basis.”
Mr. Venugopal agreed to the court’s interpretation of the government stand on privacy.
Earlier the court kept prodding Mr. Venugopal to make the government’s position clear. At one point, Chief Justice Khehar even said that the reference to the nine-judge Bench could be closed if the Centre agreed that privacy was a fundamental freedom.
“Petitioners had argued that there is a fundamental right to privacy. You [Centre] had stalled them by saying that privacy is not a fundamental right. You quoted our eight and six judges’ Benches’ judgments to claim privacy is not a fundamental right. So, the five-judge Bench hearing the Aadhaar petitions referred the question ‘whether privacy is a fundamental right or not’ to us. Now if you are saying that privacy is a fundamental right, shall we close this reference right now itself?” Chief Justice Khehar asked Mr. Venugopal.
The Attorney General explained to the Bench that the government did not consider privacy to be a single, homogenous right but rather a “sub-species of the fundamental right to personal liberty and consists of diverse aspects. Not every aspect of privacy is a fundamental right.” Some aspects of privacy were expressly defined in the Constitution, while some were not.
Mr. Venugopal said there was a “fundamental right to privacy. But this right is a wholly qualified right.”
He submitted that citizens could not agitate against Aadhaar, saying it was a violation of their right to privacy. And as far as Aadhaar was concerned, privacy was not a fundamental and absolute right. The state could subject privacy to reasonable restrictions in order to preserve the right to life of the masses. He said an elite few could not claim that their bodily integrity would be violated by a scheme which served to bring home basic human rights and social justice to millions of poor households across the country.
At this, Justice Rohinton Fali Nariman retorted: “But Mr. Venugopal, don’t forget the little man’s right to privacy, everything about right to privacy is not connected to the Aadhaar issue.”
To this, Mr. Venugopal argued that privacy was submissive to the fundamental right to life under Article 21. Aadhaar was a measure by the state to ensure the teeming millions of poor in the country were not reduced to lead an “animal existence.”
“Petitioners have divided privacy into the realms of the body and mind. They say the three aspects of privacy include bodily integrity, dissemination of personal information and the right to make own choices. Tell us which among these aspects do not fit the Bill under Article 21 [right to life],” Justice Nariman asked.
"You are wrong to say that privacy is an elitist construct. Privacy also affects the masses. For example, there is an increase in instances of cervical cancer among women in impoverished families. Right to privacy of these women will be the only right standing in the way of State subjecting them to a ‘health trial’ or, say, compulsory sterilisation," Justice D.Y. Chandrachud pitched in.
As an aside, Justice Chandrachud suggested a middle way in the Aadhaar conundrum, saying personal data could be handed over to the state, provided it collected the personal information under a statutory law; had facilities to keep them secure; and used the data only for a legitimate purpose.
But Chief Justice Khehar intervened, saying “we [the nine judges] are here to decide whether there is at all a fundamental right to privacy... The question whether Aadhaar violates privacy will be decided later by the five judges. So now you [Centre] have said privacy is a fundamental right,” the Chief Justice told Mr. Venugopal.
At this, Additional Solicitor General Tushar Mehta intervened for some of the States, saying he wanted to argue that “privacy is a right but not a fundamental right.”
“But he [Mr. Venugopal] has already said that privacy is a fundamental right,” Chief Justice Khehar responded to Mr. Mehta.
Challenging aspects of Aadhaar
The Times of India, Aug 21 2017
A nine-judge Constitution bench is set to give its judgment on whether a fundamental right to privacy exists under the Constitution.The verdict will remain authoritative for decades, defining the relationship between citizens and the state in the digital era. It will rightaway impact the outcome of about 24 cases where various aspects of Aadhaar have been challenged, petitioners arguing that the scheme and making it mandatory violates fundamental rights to privacy and equality.Here, a lowdown ahead of the privacy hearing
Will the nine-judge bench decide on Aadhaar?
The bench will decide whether a fundamental right to privacy exists under the Indian Constitution. This bench will not decide the fate of Aadhaar, only the nature and status of the right to privacy under the Constitution.
The SC ruling will, however, be extremely important in deciding the fate of Aadhaar and will impact all public and private services with which Aadhaar is linked, from requesting an ambulance to opening a bank account. It will have far-reaching ramifications in this digital age: how much can the state know about us, and what it can do with that knowledge? The right to privacy impacts many more issues than just Aadhaar and will allow claims in the context of beef ban laws, prohi bition, women's reproductive rights as well.
What are the arguments on either side?
The petitioners say that the SC has recognised the fundamental right to privacy in an unbroken chain of judgments. They say privacy is associated with and is the bulwark of other rights. There can be no dignity without privacy , and dignity is part of the Preamble, which is part of the Constitution's basic structure. Privacy is located in the golden trinity of Articles trinity of Articles 14, 19, and 21. They argue that the Constitution is a living document. Its interpretation must be in accord with passage of time and developments in law. They say India has international obligations to recognise a fundamental right to privacy.
The respondents say that privacy is a vague concept, and vague concepts cannot be made fundamental rights. Some aspects of privacy are covered by Article 21 and its other aspects should be regulated by laws only , not separately as a fundamental right.Right to life of others is more important than right to privacy .If right to privacy impedes Aadhaar, then it would deprive millions of food and shelter. They argue framers intentionally did not include privacy in fun damental rights section.
Without linking Aadhaar, will government schemes be impacted?
There is conflicting data.A 2012 study by National Institute of Public Finance and Policy estimated that linking Aadhaar could save a tenth of money spent on PDS and MGNREGS schemes. But the study was criticised for using outdated data on leakages, and overestimating the number of ghost beneficiaries.
It is also unclear how much of the `savings' from linking Aadhaar to schemes is because genuine beneficiaries are now excluded. In a study of Hyderabad PDS outlets linked to Aadhaar, nearly 10% of households reported technical problems with Aadhaar due to which they did not receive rations.The Economic Survey 201516 claimed that linking Aadhaar to LPG subsidies had saved the government 25%. But the Comptroller and Auditor General (CAG) estimated that 92% of this `saving' was due to the fall in global oil prices.
Apart from these uncertain savings, rollout of government schemes would continue as earlier without Aadhaar, since Aadhaar is meant to help existing schemes. In fact, there have been reports that rollout of Aadhaar-based systems is posing some problems. Fingerprint authentication often does not work if labourers' hands are callused; the elderly and disabled have trouble accessing affordable transport go to government centres, instead of sending others as they did earlier; technical problems abound with uneven quality of connections and devices.
Is the demand for citizen data the issue, or the security of the data?
Both. Creating one database of all details for an all-purpose ID (Aadhaar) creates its own problems -the spectre of surveillance, the possibility of exclusion from all government services, among others. On the security front, several experts believe that for centralised databases, “the question is not whether it can be hacked, but when.“
The SC verdict, 2017
HIGHLIGHTS
The order affects all 134 crore Indians
The apex court overruled previous judgments on the privacy issue
It overruled an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case
NEW DELHI: The Supreme Court (SC) on Thursday ruled that privacy is a fundamental right because it is intrinsic to the right to life.
"Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution," the SC's nine-judge bench+ ruled unanimously. It added that the right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.
This judgement is a blow to Aadhaar as the Centre now has to convince SC that forcing citizens to give a sample of their fingerprints and their iris scan does not violate privacy. The SC bench's judgment will touch the lives of 134 crore Indians. It was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable fundamental rights. What this means is a five-judge bench of the SC will test the validity of Aadhaar on the touchstone of privacy as a fundamental right.
The apex court's nine-judge bench overruled previous judgments on the issue- an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case, both of which had ruled that privacy is not a fundamental right+ . The bench comprised Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer.
Attorney general K K Venugopal, who had argued that right to privacy cannot be a fundamental right, welcomed the SC decision. "Whatever the 9-judge bench says is the correct law," said Venugopal to TOI.
The question about the constitutional status of right to privacy arose in a bunch of petitions, led by retired HC judge KS Puttaswamy, which in 2012, challenged the UPA government's decision to introduce the biometric data-enabled Aadhaar ID for citizens. The petitioners included first Chairperson of National Commission for Protection of Child Rights and Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, and others.
This question was referred to a five-judge Constitution bench on August 11, 2015.
The five-judge bench, led by Chief Justice JS Khehar, met on July 18 to decide the issue, but was told by the Centre that the strength of the bench was inadequate as an eight-judge bench in the MP Sharma case in 1954, and a six-judge bench in the Kharak Singh case in 1962, had ruled that right to privacy was not a fundamental right. The bench was quick to refer the matter to a nine-judge bench, which began hearing arguments from July 19, and concluded hearing on August 2, after a lively debate involving renowned lawyers to greenhorns.
The Centre, through attorney general KK Venugopal, argued against privacy being an inviolable fundamental right+ . This argument presented to the bench the constitutional complications intrinsic to privacy when its width and play is examined through the crosswires of fundamental rights.
"Privacy, even if assumed to be a fundamental right, consists of a large number of sub-species... It will be constitutionally impermissible to declare each and every instance of privacy a fundamental right. Privacy has varied connotations when examined from different aspects of liberties. If the SC wants to declare it a fundamental right, then it probably has to determine separately the various aspects of privacy and the extent of violation that could trigger a constitutional remedy," Venugopal said.
Meanwhile, the petitioners contended that the right to privacy was "inalienable" and "inherent" to the most important fundamental right which is the right to liberty. They said that right to liberty, which also included the right to privacy, was a pre-existing "natural right" which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.
Reaction to the judgement
SC's verdict on privacy: Who said what, Aug 24, 2017: The Times of India
The Supreme Court in a landmark judgment, declared that right to privacy was a Fundamental right under the Constitution. Here is how politicians, activists and social media influencers reacted on the apex court's remarkable order:
Rahul Gandhi
Congress vice president Rahul Gandhi termed the SC's verdict as "a victory for every Indian".
Arvind Kejriwal
Delhi Chief Minister Arvind Kejriwal thanked the Supreme Court for this important judgement.
Mamata Banerjee
West Bengal Chief Minister Mamata Banerjee also welcomed the apex court's judgement on privacy.
P Chidambaram
Senior Congress leader P Chidambaram while welcoming the SC's decision said,"The Aadhar we conceived was perfectly compatible with the Right To Privacy.It is the interpretation of this government of the Article 21 which is an invasion of Right To Privacy." He also said that "there is no fault in the Aadhar concept but there is fault in how this government plans to use or misuse Aadhar as a tool."
Jyotiraditya Scindia
Senior Congress leader and Member Parliament from Madhya Pradesh Jyotiraditya Scindia welcomed Supreme Court's unanimous verdict.
Subramanian Swamy
Senior BJP leader Subramanian Swamy pinned his hope on modification of Aadhaar.
Omar Abdullah
After SC's verdict, former Jammu and Kashmir Chief Minister Omar Abdullah expressed his happiness that he now has right to privacy.
Rajeev Chandrasekhar
BJP MP Rajeev Chandrasekhar was glad over the SC's verdict.
Randeep S Surjewala
Congress spokesperson Randeep S Surjewala said that the SC's verdict is a decisive defeat for BJP Government.
Kamal Haasan
SC upholds the right to privacy Nothing vague or amorphous about it. People thank the Honourable Judges. These are moments that make India.
Impact on Sec. 377 of the IPC
See graphic: Impact of the SC verdict in August 2017 on Section 377 of the Indian Penal Code ‘'
See graphic, ' Right to Privacy, a timeline, 2012-August 2017 ‘
Right To Privacy Subject To Restrictions
Says Right To Privacy Subject To Restrictions
There is sufficient leeway for the government to pursue digitalisation programmes, many of which are centred around Aadhaar, with the Supreme Court setting out “legitimate state aims“ that can allow linkage of UID with social welfare schemes.
The SC's clear cut reference to national security , prevention and investigation of crime, encouraging innovation and making delivery of welfare programmes' more efficient as permissible objectives will help preserve Aadhaar-driven programmes that have been challenged over privacy issues.
While the petitioners had sought the establishment of privacy as a fundamental right by itself the court has located it within the right to life and liberty and therefore subject to restrictions that apply to Article 21.This would mean initiatives like linking Aadhaar to tax returns can be justified on the grounds that this will help check fraud through use of multiple PAN cards commonly used to duck tax.
The judgement provides grounds for the government to argue that the use of Aadhaar, and the consequent implications for privacy , need to be weighed against whether UID has improved governance. So if the government can show duplicate and ghost beneficiaries have been eliminated, graft reduced and right beneficiaries benefited, it will have a strong case for use of biometric verification.
Data protection is the other crucial issue as the SC expressed concern during arguments that it did not want information to leak and users harassed by telemarketers. Here UID's own security systems -dispersal of servers and protocols requiring several staff to share codes before accessing internally -are as important as guidelines for government and private users of KYC services.
The SC judgement does make it evident that the government will have to present a robust reasoning for expansion for Aadhaar use to more areas apart from delivery of government services. But the court itself has asked for Aadhaar linkage to mobile telephone connections and its use for verification of identities does not seem likely to be affected.
The international references to use of biometrics include maintainence of DNA profiles of convicts in some countries like the US where the facility has helped law agencies resolve unsolved crimes while also, on occasion, establishing a wrongly convicted person as innocent. The expansion of privacy into a fundamental right, however, means the provisions of the Aadhaar Act not to allow collation of data on individuals will be taken more seriously by the current and succeeding governments. On the other hand, the ruling that there is no general right to privacy means government action will continue.
